A DWI offer you can't refuse

Tim Powers

In a growing number of states, a DWI stop can lead to a roadside needle
in your arm—and an involuntary blood sample

Officer Taylor cruised through the Austin metro for almost two hours before
she finally collared a drunk driver around midnight. Sure, it was a Wednesday
night—but it was also Halloween.

For Taylor, it was about time. She's a busy-body by nature, and it
couldn't have helped that she was saddled with a hack writer. Because
no one else raised their hand and because she's the rookie in the
Austin Police Department's (APD) 14-member DWI unit, Officer Taylor
"volunteered" to serve as ride-along chaperone during one of
the department's "No Refusal" weekends. It's probably
fair to say we both got excited when she finally hit the lights.

Texas' No Refusal law is pretty straightforward. If a police officer—after
a reasonable detention to investigate his or her informed suspicion of
public intoxication—can demonstrate probable cause that a vehicle
operator is drunk, and if that person refuses to "volunteer"
potential evidence to further the investigation, the officer can apply
for a warrant from the night judge to take a biological sample to prove it.

Simply put: If, on a No Refusal night, you get pulled over for drunk driving
and refuse to cooperate, they will haul your ass to jail and take your blood.

"There's a Supreme Court case that says [police] can obtain a
warrant to take someone's blood and [that that is] not compelled self-incrimination,"
says an Austin judge. "If I were on the Supreme Court, I would have
said, 'No, you can't do that. It's compelling someone to incriminate
themselves by forcibly taking blood from their body.'"

Sounds ghoulish. And yet, the only complaints DWI unit leader Lt. Derek
Galloway ever hears about No Refusal come from talk-radio callers who
deride the officers as "
police vampires."

At least 14 states have implemented No Refusal blood draw laws. Passed
by the Texas state legislature in 1995, Austin implemented No Refusal
laws in 2002. It's automatically required for incidences involving
previous convictions, a traffic accident and so on. But for everyone else,
No Refusal is "voluntary," in so far as the Austin police don't
usually bother with the entire process most days of the year. Lt. Galloway
said the only difference that distinguishes No Refusal weekends or days—usually
holidays and national events that go hand-in-hand with a spike in drunk-driving,
such as Memorial Day, Super Bowl Sunday, Halloween and the night before
Thanksgiving—is that they're primarily a "free promotional
opportunity."

"The media likes it because the media has a story to run and it gives
them a little piece. But also at the same time, it helps us to get the
word out—just don't drink and drive," said the lieutenant.
But in reality, he added, the police "could go No Refusal all the
time, at any point." San Antonio does it year-round.

On these high-profile nights, Austin police typically arrest about 25 people
for driving while intoxicated. And although "each No Refusal [weekend]
is a bit different," Galloway said, the average number of individuals
who refuse to give a biological specimen and thus are sent to jail for
a blood draw is "anywhere between 50 and 60 percent."

As luck would have it, the suspect Officer Taylor stopped was dressed for
Halloween. He was going as
Jeffrey Tambor, the actor most famous for playing (appropriately enough) jailbound patriarch
George Bluth in the mid-2000s cult sitcom
Arrested Development.

It didn't seem like Officer Taylor would have to invoke No Refusal.
She had Jeffrey Tambor dead to rights. For starters, Officer Taylor and
her responding partner found two longnecks inside the vehicle—and
it was easy to see, even from 30 feet away and at night, that one of the
bottles was half-full and trickling with condensation. And Jeffrey Tambor,
in jeans and baby-blue cowboy boots, clearly failed all the other tests,
including the portable breathalyzer, which—though inadmissible in
Texas court—is usually a sure bet. He even freely and voluntarily
violated his own Fifth Amendment rights, remorsefully blaming his "bad
decisions," including a 14-hour-day, a light dinner of kale salad
and playing "too much good music."

After listening attentively to Officer Taylor read, as required by law,
the page-long explanation of No Refusal, Jeffrey Tambor politely replied,
"I guess I should say 'no,' right?" And that was it.

"You're just doing your job, and that's all for the best,"
said Jeffrey Tambor from behind the plexiglass of the cop car. The smell
of booze wafted throughout the vehicle for the entire journey. "It's
Halloween."

There were a wide variety of detainees—about 20, give or take—in
the open room-style jailhouse. Jeffrey Tambor stood out as the person
most likely submit a properly annotated tax return.

After some paperwork, Officer Taylor headed through a corridor to the night
judge's office, where his honor would review the search warrant.

The judge didn't want to be identified—but he did like to talk,
and seemed to enjoy walking this reporter through the steps of a No Refusal warrant.

He also opined on the constitutionality of No Refusal, according both to
his and others' opinions. "There's a
Supreme Court case that says [police] can obtain a warrant to take someone's blood and
[that that is] not compelled self-incrimination," said the judge,
as he dutifully studied the warrant and began signing off on it. "Personally,
I think it is. If I were on the Supreme Court, I would have said, 'No,
you can't do that. It's compelling someone to incriminate themselves
by forcibly taking blood from their body.'"

Local attorney Jamie Balagia feels the same way. A former police officer
with drug expertise, Balagia advertises himself as the "DWI Dude,"
because the gonzo attorney handles such cases almost exclusively—and
often can get them thrown out on technicalities.

One bone of contention for Balagia is that the No Refusal law itself is
written with the specificity of a coloring book. There is nothing in the
blood warrant section that says how long the government can keep the specimens
(they take two: one for the prosecution and another for any future defense).
Nor does it require "vampire police" to have any special training
before they can demand blood from members of the public. There's also
nothing that forbids obtaining evidence outside of the initial DWI test.

The reality isn't that Orwellian, for a simple reason: According to
APD Forensic Chemistry Supervisor Gloria Rodriguez, her department doesn't
have the resources. They can't afford to be that cunning.

"We're averaging approximately 400 blood alcohols a month …
and we can't work that many a month," she said. Although they
contract out for some of the testing, Rodriguez's office only has
one full-time blood specialist, and her staff hasn't increased since
1992. The current wait time (in-house or otherwise) for alcohol blood
tests is about three months—and any blood needing to be tested for
anything besides alcohol has to be sent out to a different chemist entirely.

Another one of Balagia's objections to No Refusal is the rubber-stamping
of blood warrants. "I've never seen a judge say no," he
said. "Why not have a chimpanze rubber-stamp these warrants? Because
they are not turning down or rejecting any of them."

A local ACLU representative agreed, saying she couldn't think of a
single example of a judge declining to sign a warrant.

Evelyn McKee, presiding judge of the Austin Municipal Court, told The Fix
why. Rejection of blood warrants doesn't happen often because, she
said, "Generally, if the probable cause for the underlying charge
is sufficient, then it's probably going to be sufficient for the warrant."

So while it might sound like hyperbole when Balagia says that the No Refusal
law essentially means, "We're going to take your blood no matter
what you do"—in practice, it rings true.

That's what makes watching the procedure so difficult. It doesn't
help that Officer Taylor's suspect is still in character as Jeffrey
Tambor as he's escorted to a 10×10 concrete room with a blood-drawing
chair and a phlebotomist at a desk, casually reading a novel.

If Jeffrey Tambor was drunk before, he's seems as sober as a Mormon
now. And boy is he a nervous talker.

"All I would say is that I'm known to faint if I have my blood
taken, so if you got some smelling salts …. I mean, I'm getting
better. But having three children, every time I had a child—you
know, my wife was Jewish—they did the [circumcision], and one time
I fainted."

"When people are drunk, they don't faint," smirks the late-20s
or early-30s bloodletter, a contract worker.

Officer Taylor later told The Fix that such civilians are free to say whatever
they want during the procedure, even if the suspect hasn't been been
read his Miranda Rights. The department contracts out the phlebotomist
work so there's no conflict of interest.

Meanwhile, Jeffrey Tambor is incredulous as he stares at the two needles
coming his way. "Two vials? Brother?!"

The poor guy does everything in his power not to think about the procedure.
He tells Officer Taylor, profusely, how much "I appreciate your professionalism
… I think you did a great job."

After a few more apologies and excuses—along with a switch to his
left arm, after the novice phlebotomist missed the vein in his right—the
ordeal is over, with two vials full of incriminating-or-not blood. Jeffrey
Tambor leaves the room to await his arraignment.

"That's the nicest guy ever," says Officer Taylor.

Back out on the street, trawling through Austin's main party district
shortly after last call at 2am, I asked Officer Taylor—who on the
whole seems like a three-dimensional person, and a good cop—about
the No Refusal law in theory, which to this reporter seems, at best, ethically murky.

While driving past the slutty occupationists, professional idiots on Casual
Day and minorities with traditional "Day of the Dead" face paint,
Officer Taylor begins by mumbling something about drunk idiots on the
street. It's clearly difficult for her to come up with an answer.

"The most important thing is that you get them off the street,"
said Officer Taylor of the drunk drivers that No Refusal is designed to
net. "If all my cases get dropped, I don't care. They won't,
because I write very good reports. But, if they did, all that matters
is that we got a suspected drunk off the street and potentially saved
a life."

Still, it's detaining someone who is merely suspected of a crime, and
forcibly sticking a needle into his or her arm for proof of that offense.
And it goes further than that. In its coming term, the Supreme Court will
review more than 40 cases to determine if Missouri's warrantless blood
draws for DWI suspects are constitutional. There's a reason why the
APD are as conscientious as they are about going through the motions.
And it's because of all that rigorous work that Officer Taylor doesn't
have any doubts about No Refusal.

And yet, she says, "But … before I even arrested him, he said,
'Yeah, I probably shouldn't have been driving.' So does a
little needle poke matter to me? No. He knew when he got behind the wheel
that he should have not been driving."

It's hard to argue with that, or with what
The Fix saw and heard the rest of the night. En route to the final DWI stop of
the night, Officer Taylor and I heard the dispatcher squawk "in a
Kill Bill costume, intoxicated … trying to hitchhike." That was funny.
But then we pulled up to location Officer Taylor had originally been called
to. It was a DWI stop of a young woman wearing a blood-red shirt, with
a floppy red spade tail hanging from the back of her pants. She acted
possessed—tears, rage, etc.—throughout the field sobriety
tests and Officer Taylor's reading of the No Refusal law. Clearly
she was guilty as sin—and in the back of the police cruiser she
went. As we went to deliver her to be processed, another call came through
that wasn't so funny.

The dispatcher spoke in cop code, so Officer Taylor translated. It was
a single-car collision—usually a sure sign of drunk driving. The
driver had been decapitated, and the car was on fire.

At the same time, a rhythmic rasping could be heard from behind the plexiglass.
The little devil had passed out. She would later volunteer a breathalyzer
sample, blowing a 0.129, well above Texas' legal limit of 0.08. She
was rewarded with a cigarette and a trip to the county jail.

This article was found at: http://www.salon.com/2012/11/23/a_dwi_offer_you_cant_refuse/singleton/

If you are seeking aggressive criminal representation by an experienced
criminal defense attorney for your Denton County DWI case or arrest in
Denton County, contact the offices of Tim Powers today. There is no charge
or obligation for the initial consultation. 940.580.2899.

*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult
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